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State v. Stovall

January 28, 2002

STATE OF NEW JERSEY, PLAINTIFF-APPELLANT
v.
FELICIA STOVALL, DEFENDANT-RESPONDENT



The opinion of the court was delivered by: Zazzali, J.

Argued September 10, 2002

On appeal from the Superior Court, Appellate Division.

This appeal requires the Court to determine the legality of a police investigatory stop. Specifically, we must decide whether a law enforcement officer had reasonable suspicion to conclude that a suspect at Newark International Airport was transporting narcotics. The Appellate Division held that the officer was not justified in that conclusion, and affirmed the trial court's suppression of the drugs seized as a result of defendant's detention and subsequent arrest. We disagree. Upon review of the totality of the circumstances, we conclude that the officer had reasonable suspicion that defendant was transporting narcotics and therefore was justified in detaining defendant.

I.

The Port Authority of New York and New Jersey (Port Authority) is charged with the operation of Newark International Airport. The Port Authority employs numerous law enforcement officers including Detective Charles Benoit. Detective Benoit is a narcotics interdiction Task Force Officer who primarily works at Newark Airport. At the time of this incident, Benoit was "on loan" from the Port Authority to the United States Drug Enforcement Agency (DEA).

On May 31, 1998, Detective Benoit received an electronic page from DEA Agent Scott Cahill in Los Angeles. Agent Cahill informed Detective Benoit that an American Airlines ticket agent at Los Angeles International Airport had informed Cahill that two potential drug couriers were aboard American Airlines Flight 114 from Los Angeles to Newark. According to the ticket agent, two female suspects had checked in using "fraudulent" or "questionable" identification. Agent Cahill also informed Detective Benoit that one of the suspects was traveling under the name "Roberta Chambers." He further stated that although the suspects' tickets had been purchased at the same time from the same agency, the two women were traveling separately and did not appear to know each other. Agent Cahill described the suspects as "possibly Hispanic." Both women were in their mid-twenties and were wearing "business type suit[s]." Both carried black "crew-type bags," or tote bags with wheels that are pulled by a handle. One woman, later identified as defendant, had short hair, wore red, and had a return ticket for June 10. The other woman was wearing a plaid skirt and had longer hair.

Agent Cahill told Detective Benoit that the tickets were purchased through International Mirmar Travel. Detective Benoit testified that he previously had arrested drug traffickers with tickets purchased from that agency.

Detective Benoit also testified that in the past he had received information "of this nature . . . [n]umerous times, dozens of times." Thus, on receipt of the information, Detective Benoit notified his partner, Detective Jim Kane, and met him at their office in Newark Airport. The two officers confirmed the flight's arrival time, obtained the services of a Spanish- speaking officer, and notified K-9 Port Authority Police Officer Thomas Hering to "stand by." Detectives Benoit and Kane then proceeded to the American Airlines terminal and waited for Flight 114 to arrive.

As passengers disembarked, Detective Benoit noticed two women matching the general descriptions provided by Agent Cahill. Although the women emerged from the jetway at different times, both were pulling small, black tote bags on wheels, and appeared to be "the same age or approximately the same age" as the women described by Agent Cahill. According to Detective Benoit, drug couriers prefer carry-on luggage because "check-in" luggage might be subject to handling by others and because K-9 units are regularly posted in the baggage handling area. Although matching Agent Cahill's general descriptions, the women were African- American, not Hispanic.*fn1

As the women proceeded to leave the terminal, Detective Benoit followed defendant and Detective Kane pursued the other suspect. Detective Benoit approached defendant, identified himself as a police officer, and "asked for permission to speak with her." Defendant asked Benoit where he would like to speak with her and he replied that where they were was fine. Detective Benoit then asked defendant where her flight originated and defendant responded "Los Angeles." At his request, defendant produced her airline ticket bearing the name "Roberta Chambers." Detective Benoit recognized the name as one of the names provided by Agent Cahill. Benoit also noticed that defendant had a "bulk" ticket. According to Detective Benoit, narcotics suppliers often purchase such tickets, which are available at a discounted rate because they are purchased in "bulk." Those tickets are then distributed to individual couriers in an effort to save money and avoid detection.

After examining defendant's ticket, Detective Benoit returned it to her and asked for identification. Defendant presented him with a California state identification card bearing the name "Roberta Chambers" and listed an address on Main Street in Los Angeles, California. Detective Benoit testified that he found it "unusual" that a state identification card was defendant's sole form of identification because "most people carry more substantial identification, specifically a driver's license." Benoit also found the identification suspicious because the card had expired. He returned the card and asked defendant for her local destination. Defendant told Detective Benoit that she was traveling to New York to visit her boyfriend. Detective Benoit then asked if the luggage she was carrying belonged to her, whether she had packed the bags, and whether she knew what the bags contained. Defendant responded affirmatively to all three questions. Detective Benoit testified that during his conversation with defendant, defendant was "noticeabl[y]" nervous and her hand shook.

After several minutes, defendant asked Detective Benoit why he was asking her questions. Detective Benoit informed defendant that he was a member of a narcotics interdiction team and that he suspected that she was carrying drugs. He then requested permission to search her suitcase and informed defendant of her right to refuse consent. Defendant refused and told Detective Benoit that she wanted to leave. In response, Detective Benoit asked her if she "could [] please stand by one minute," but defendant reiterated that she wanted to leave. Detective Benoit then said "this will just take a few moments." Defendant did not react.

At that point, Detective Benoit was focused on defendant, while Officer Kane was speaking with the other suspect several feet away. Detective Benoit called for the K-9 unit, which arrived shortly thereafter. The officers placed defendant's luggage on the ground and the dog "alerted," indicating the presence of narcotics. Consequently, the officers took defendant into custody and advised her of their intention to seek a warrant to search her bag. Defendant then admitted that her real name was Felicia Stovall and consented to a search of her bag. Before searching the bag, the officers contacted the Union County Prosecutor who informed them that defendant could still change her mind. The officers so informed defendant, stating "you don't have to allow us into the bag." Defendant nonetheless gave permission to search her bag and signed a consent form. A search of defendant's luggage yielded three bundles of marijuana totaling approximately forty-seven pounds.

Defendant subsequently was indicted for possession of a controlled dangerous substance, contrary to N.J.S.A. 2C:35- 10a(3), and possession of twenty-five pounds or more of a controlled dangerous substance with intent to distribute, contrary to N.J.S.A. 2C:35-5a(1) and N.J.S.A. 2C:35-5b(10)(a). Defendant moved to suppress the seized evidence. Defendant neither testified nor presented witnesses at the suppression hearing, and did not file an affidavit in support of the motion. The trial court nevertheless granted defendant's motion and the State appealed. In an unpublished per curiam opinion, the Appellate Division affirmed. We granted leave to appeal, State v. Stovall, 165 N.J. 596 (2000), and now reverse.

II.

As a threshold matter, we consider whether Benoit "seized" defendant within the meaning of the Fourth Amendment to the United States Constitution and Article 1, paragraph 7 of the New Jersey Constitution. Both constitutions protect a person's right to be free from unreasonable searches and seizures. U.S. Const. amend. IV; N.J. Const. art. I, ¶ 7. In determining whether a seizure occurred, a court must consider whether "in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he [or she] was not free to leave." United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877, 64 L. Ed. 2d 497, 509 (1980); see also INS v. Delgado, 466 U.S. 210, 216-17, 104 S. Ct. 1758, 1763, 80 L. Ed. 2d 247, 255 (1984) (stating that no detention occurs under Fourth Amendment unless circumstances of encounter demonstrate that reasonable person would not feel free to leave); State v. Tucker, 136 N.J. 158, 165 (1994) (noting that whether persons are seized "depends on an objective analysis of all the circumstances of their encounter" with police); State v. Davis, 104 N.J. 490, 498 (1986) (stating that court must consider totality of circumstances surrounding detention).

Even a brief detention can constitute a seizure. Terry v. Ohio, 392 U.S. 1, 16, 88 S. Ct. 1868, 1877, 20 L. Ed. 2d 889, 903 (1968). However, "[t]he police do not violate the fourth amendment by ?merely approaching an individual on the street or in another public place, by asking him [or her] if he [or she] is willing to answer some questions . . . .'" Davis, supra, 104 N.J. at 497 (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229, 236 (1983)).

On the other hand, "mere field interrogation" is constitutional "so long as the officer does not deny the individual the right to move." State v. Sheffield, 62 N.J. 441, 447, cert. denied, 414 U.S. 876, 94 S. Ct. 83, 38 L. Ed. 2d 121 (1973). A police officer may conduct an investigatory stop if, based on the totality of the circumstances, the officer had a reasonable and particularized suspicion to believe that an individual has just engaged in, or was about to engage in, criminal activity. Terry, supra, 392 U.S. at 21, 88 S. Ct. at 1880, 20 L. Ed. 2d at 906. This Court has upheld the constitutionality of a temporary street detention based on less than probable cause. Tucker, supra, 136 N.J. at 167; accord State v. Maryland, 167 N.J. 471, 487 (2001); State v. Caldwell, 158 N.J. 452, 458 (1999); State v. Arthur, 149 N.J. 1, 8 (1997); Davis, supra, 104 N.J. at 504; Sheffield, supra, 62 N.J. at 446.

Reasonable suspicion necessary to justify an investigatory stop is a lower standard than the probable cause necessary to sustain an arrest. State v. Citarella, 154 N.J. 272, 279 (1998); Arthur, supra, 149 N.J. at 8. However, reasonable suspicion is neither easily defined nor "readily, or even usefully, reduced to a neat set of legal rules." Illinois v. Gates, 462 U.S. 213, 232, 103 S. Ct. 2317, 2329, 76 L. Ed. 2d 527, 544 (1983). The United States Supreme Court has defined reasonable suspicion as "?a particularized and objective basis for suspecting the person stopped of criminal activity.'" Ornelas v. United States, 517 U.S. 690, 696, 116 S. Ct. 1657, 1661, 134 L. Ed. 2d 911, 918 (1996) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695, 66 L. Ed. 2d 621, 629 (1981)). In justifying an investigatory detention based on reasonable suspicion, a police officer must "be able to articulate something more than an ?inchoate and unparticularized suspicion or hunch.'" United States v. Sokolow, 490 U.S. 1, 7, 109 S. Ct. 1581, 1585, 104 L. Ed. 2d 1, 10 (1989) (quoting Terry, supra, 392 U.S. at 27, 88 S. Ct. at 1883, 20 L. Ed. 2d at 909). "The principal components of a determination of reasonable suspicion . . . [are] the events which occurred leading up to the stop . . ., and then the decision whether these historical facts, viewed from the standpoint of an objectively reasonable police officer, amount to reasonable suspicion . . . ." Ornelas, supra, 517 U.S. at 696, 116 S. Ct. at 1661-62, 134 L. Ed. 2d at 919.

III.

A.

We agree with the trial court and the Appellate Division that Detective Benoit "seized" defendant. The trial court stated:

At first this was an encounter between [defendant] and Detective Benoit. However, once [defendant] said that she wanted to leave and her bag could not be searched it became a stop. She would not have felt free to leave because he said she had to wait. It's not a question of how long that period was, just that it occurred, and her bag was seized against her will.

The Appellate Division agreed with that conclusion.

Detective Benoit followed defendant after she disembarked from the plane and approached her. We note that his initial stop and questioning of defendant was permissible. State v. Green, __ N.J. Super. __, __ (App. Div. 2001). However, he then examined defendant's plane ticket and identification, informed her that he was a narcotics interdiction officer and that he suspected her of drug trafficking, and requested defendant's consent to search her luggage. Defendant refused and told him that she wanted to leave. Detective Benoit then "asked her could she please stand by one minute." Defendant repeated that she wanted to leave, and he told her "this will just take a few moments."

In light of these circumstances, an objectively reasonable person would not have felt free to leave. See W.R. LaFave, 4 Search and Seizure § 9.3(a), at 102-03 (3d ed. 1996) ("[A]n encounter becomes a seizure if the officer engages in conduct which a reasonable [person] would view as threatening or offensive even if performed by another private citizen. This would include such tactics as pursuing a person who has attempted to terminate the contact by departing, [or by] continuing to interrogate a person who has clearly expressed a desire not to cooperate . . . .") (footnotes omitted). Although Detective Benoit framed his first statement as a request rather than a command, the fact that defendant expressed her desire to leave and he did not allow her to do so demonstrates that defendant was not free to leave. Moreover, Detective Benoit's statement that "this will just take a few moments," implied that he would not have permitted defendant to leave. Accordingly, we find that Detective Benoit's detention of defendant, however brief, constituted a seizure.

B.

The more critical issue, and closer question, is whether Detective Benoit's "seizure" of defendant was constitutionally justified. Both the trial court and the Appellate Division held that Detective Benoit's detention of defendant at Newark International Airport was unconstitutional, concluding that he impermissibly relied on a "drug courier profile." We disagree. Nothing in the record indicates that Detective Benoit relied on a "drug courier profile." Even if he had, however, the characteristics contained in such a profile are permissible factors to be considered in the totality of the circumstances analysis of reasonable suspicion. See Sokolow, supra, 490 U.S. at 10, 109 S. Ct. at 1587, 104 L. Ed. 2d at 12; Green, supra, __ N.J. Super. at __; State v. Patterson, 270 N.J. Super. 550, 557- 60 (Law Div. 1993), aff'd o.b., 270 N.J. Super. 562 (App. Div. 1994).

A "drug courier profile" is a "compilation[] of objective factors which may be innocent alone, but in conjunction with each other or other facts, lead officers to believe that the suspect is engaging in drug trafficking." Kimberly J. Winbush, Annotation, Propriety of Stop and Search by Law Enforcement Officers Based Solely on Drug Courier Profile, 37 A.L.R. 5th 1, 11 (1996); see also LaFave, supra, § 9.4(e), at 166 (describing federal DEA "drug courier profiles" and their use in detaining and arresting suspected drug traffickers at airports). Many courts have addressed the utility of drug courier profiles in the context of the reasonable suspicion analysis. In general,

most courts consider those factors actually exhibited by a suspect to determine if they collectively demonstrate reasonable suspicion, without accepting any set or combination of factors as demonstrating reasonable suspicion per se. LaFave, supra, § 9.4(e), at 174.

Although it has not addressed the specific question whether drug courier profiles alone can provide a basis for reasonable suspicion, the United States Supreme Court has approved the use of profile characteristics in the totality of circumstances analysis of reasonable suspicion. See Sokolow, supra, 490 U.S. at 10, 109 S. Ct. at 1587, 104 L. Ed. 2d at 12 (holding that because officer's reasonable articulable suspicion may be comprised of factors also included in drug courier profile that "does not somehow detract from [those factors'] evidentiary significance as seen by a trained agent").

State courts that have addressed this issue have held similarly. See, e.g., State v. Martinson, 581 N.W.2d 846, 851 (Minn. 1998) (holding that police may rely on characteristics that can be labeled drug courier profile factors in determining whether reasonable suspicion exists); Commonwealth v. Bennett, 604 A.2d 276, 284 (Pa. Super. Ct. 1992) (holding that "[a] match between the so-called profile and characteristics exhibited by a defendant does not, in and of itself, create a reasonable suspicion sufficient to justify an investigatory stop" (quoting United States v. Hanson, 801 F.2d 757, 762 (5th Cir. 1986))); cf. State v. Casey, 296 S.E.2d 473, 480 (N.C. Ct. App. 1982) (approving use of drug courier profile as basis for investigatory stops). Similarly, New Jersey courts have recognized that characteristics included in drug courier profiles are legitimate factors to be considered ...


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